Sex-Harassment Claim Strikes Chord in 9th Circuit

PASADENA, Calif. (CN) — The Ninth Circuit on Wednesday appeared sympathetic to a woman trucker who accused CRST International of firing her after she reported a male co-worker of sexually assaulting her on a cross-country haul.

“What did your client do upon receipt (of the complaint)?” Ninth Circuit Judge Richard Tallman asked a CRST attorney at the hearing. “The record is silent. The documents produced in discovery don’t corroborate any investigation at all.”

Robin Anderson claims CRST fired her after she complained that she awoke to find her co-driver, Eric Vegetel, approaching her naked in a hotel room the company forced them to share during a trip from the East Coast to California.

In a brief to the court, Anderson said that Vegtel, also a defendant, drove with his pants undone, claiming he was “too big” to zip them up; that he told her he had a painful erection that was so strong he “didn’t know what to do,” and said he had got into trouble during a pornography shoot for staring at a porn star’s breasts.

CRST has a policy of placing two drivers on one truck, and having them take turns driving and sleeping, according to the opening brief and CRST’s answering brief.

When Anderson and Vegtel rented a hotel room after their truck broke down in Pennsylvania, Anderson says, she asked CRST for a separate room, but it refused to reimburse her for it.

“This whole case could’ve been avoided with an $80 hotel bill,” Judge Tallman said Wednesday. “When a woman says she is going to be forced to share a hotel room with this man and the company says, ‘No,’ you’re going to have a situation.”

Anderson accused CRST of refusing to investigate her complaint and falsely claiming it had taken remedial action, though it never interviewed her or Vegtel about it.

She seeks damages for harassment, discrimination, retaliation and failure to prevent harassment and discrimination under Title VII of the 1964 Civil Rights Act and the California Fair Employment and Housing Act.

Anderson says CRST never called her to schedule additional trips after she reported Vegtel’s harassment, and that it made no attempt to pair her up with a female co-driver upon returning to California. Her repeated calls to the company went unanswered, and a few weeks later, CRST fired her, according to her 48-page brief to the court.

CRST claims that it fired Anderson because she failed to report to work or return her fleet manager’s calls to schedule trips. It says it sent her an email with a list of female drivers and their contact information, but Anderson never followed up.

A federal judge granted the defendants summary judgment in April 2015, finding that CRST could not be held liable for Vegtel’s harassment because it had taken remedial action on Anderson’s complaint.

On Wednesday, Tallman asked the parties to focus on what CRST knew, when it knew it and what action it took to fix it.

Both parties’ arguments hinged on the email Anderson’s fleet manager allegedly sent her with a list of female drivers.

Anderson said in her brief that she never received the email, because it was sent to the wrong address. On Wednesday her attorney Brian Van Vleck said the email was so unintelligible that Anderson wouldn’t have known what to do with it even if she had received it.

CRST attorney Christopher Eckhart acknowledged that the email was so vague, without a cover message or directions, that it was unclear whether the drivers on the list were even women. But he said CRST had taken sufficient action.

“I agree the email itself was not clear,” Eckhart told the court. “But we attempted to match her with co-drivers and plaintiff did not dispute that fact.”

CRST says it flagged Vegtel in its internal system so that he could no longer be paired with female drivers. But Anderson says that neither she nor Vegtel knew CRST had done this, so that she was unaware that the company had taken any action at all.

Tallman on Wednesday succinctly laid out the steps CRST took to address Anderson’s complaint: It flagged Vegtel internally, and it sent Anderson an “incomprehensible” email and a form letter telling her it had investigated her complaint and had taken steps to address it.

Anderson says she never received the form letter either.

Tallman and Ninth Circuit Judge Michelle Friedland asked repeatedly whether those actions were sufficient to inform Anderson that she could continue working, with female drivers, or that the company was investigating her allegations.

Tallman noted that an investigation form CRST used to investigate Anderson’s complaint was blank, save for checkmarks to indicate the company had received it and sent a response letter.

“How could we tell from that email that she knew?” Friedland asked. “Even if she got it, it’s meaningless. Isn’t it important she know some step was being taken to prevent this harassment?”

On rebuttal, Van Vleck said CRST had chosen to protect itself from liability by barring Vegtel from driving with women, but didn’t care to punish incidents of sexual harassment.

“Doing a fact investigation is an important corrective action itself. It sends the message to other would-be harassers the company takes it seriously,” he said. “When the company won’t be bothered to get the actual facts from either the accuser or the accused, it tells the whole workforce they don’t care.”

Senior U.S. District Judge David Faber, sitting by designation from the Southern District of West Virginia, joined the panel.